How to Make Revenge Porn a Crime Without Trampling Free Speech

How to Make Revenge Porn a Crime

Worried about trampling free speech? Don’t be.

Holly Jacobs had to change her name so strangers would stop contacting her.

Photo by M.A. Williams, courtesy Cyber Civil Rights Initiative

During the course of a long-distance relationship, Holly Jacobs shared sexually explicit photos and videos with her ex-boyfriend. She trusted him to keep them private. After they broke up, Jacobs received an anonymous email with a link and a warning that “Someone is trying to make life very difficult for you.” When she clicked on the link, she discovered the nude images that she’d shared with her ex on a site hosting revenge porn—compromising photos, often put up by exes after a breakup, without the subject’s consent. Googling her name, Jacobs found her naked images had spread to hundreds of sites with captions featuring her name, work bio, and email address. Someone had also created a fake profile on a porn site posing as her. She received phone calls and emails from strangers demanding sex. She changed her name (to Jacobs) and left her part-time job so that strangers titillated by the posts could not find her.

In 2013, the Florida state attorney’s office charged Jacobs’ ex-boyfriend with a misdemeanor count of cyberstalking. The case was progressing. Investigators traced one of the porn posts to her ex’s IP address. Investigators told Jacobs that they needed a warrant to search his computer for further evidence because her ex claimed that he had been hacked. He denies releasing Jacobs’ pictures. And last month, the charges against him were dismissed when prosecutors decided they could not justify seeking a warrant for a misdemeanor case. Their hands were tied, they said.

“I’ve been hacked” is a standard defense in cyberstalking cases. The main way to disprove it is for the police to get a warrant to search a defendant’s computer or home. States can make sure this happens by treating the posting of revenge porn as a felony. That would have made a difference in the way that Florida prosecutors handled Jacobs’ case.

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A few states are moving in this direction. New Jersey was the first to adopt a criminal invasion of privacy statute, making it a felony to disclose a person’s nude images knowing he or she does not have permission to do so. Legislators in Maryland, Wisconsin, and New York have proposed revenge porn bills. California recently passed one—but made it only a misdemeanor to distribute a sexually explicit image without the subject’s consent. California didn’t go far enough partly because of the myths that are frequently invoked to protect revenge porn. Here’s how to debunk those myths so they don’t wreck the chance for reform.

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Current Law Can’t Solve the Problem

One prevailing myth is that existing law already addresses revenge porn. Santa Clara University law professor Eric Goldman argues specifically that criminal harassment laws punish the distribution of sexually explicit images when there is intent to harm. That’s not always true, though. Harassment laws only apply if the defendant is persistent in his or her cruelty. A few postings of someone’s name, address, and sexually explicit image can cause serious damage, but may not amount to a harassing “course of conduct.” A revenge porn post can go viral, but the poster who started the mess could duck harassment charges. And even when revenge porn amounts to criminal harassment, police may refuse to get involved. Victims are often told the behavior is not serious enough for in-depth investigation, as in Jacobs’ case. They are shooed away because, officers say, they are to blame for the whole mess, since they chose to share their intimate pictures.

Suing someone who posts revenge porn in civil court isn’t a meaningful option either. If a victim did not take the sexually explicit photo herself, she has no right to ask a site to take it down, because the copyright belongs to the photographer. And even when the subject took the photo herself, her supposed right to sue for a copyright violation is often illusory. Revenge porn sites often ignore requests for removal because they are not worried about being sued. They know that most victims cannot afford to hire a lawyer.

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In theory, a victim could sue the poster of her images for intentional infliction of emotional distress or public disclosure of private facts, claiming damages based on her emotional suffering. Again, however, it’s hard to find a lawyer willing to take the case. Most lawyers don’t know this area of law and aren’t prepared to handle the trickiness of online harassment evidence. And defendants often don’t have deep pockets, so it’s hard to recover much in the way of damages. What’s more, since plaintiffs in civil court generally have to proceed under their real names, victims may be reluctant to sue for fear of unleashing more unwanted publicity.

The Market Can’t Solve the Problem

Sarah Jeong, a Harvard law student and author of a recent Wired editorial, says the call for revenge porn legislation is “disingenuous” because the main revenge porn sites are closing. Although one or two notorious sites recently shut down, nothing would prevent them from re-emerging, and many others remain. More than 40 sites are wholly or partially devoted to the posting of revenge porn. Site proprietors reportedly earn tens if not hundreds of thousands of dollars through advertising, subscription, and removal schemes. Also, these sites are only part of the problem. Blogs and social networks are often used to host revenge porn too. The bottom line is that this scourge won’t go away on its own.

The Constitution Is Not a Deal-Breaker

Free speech advocates worry that revenge porn laws are too broad and vague, and thus risk chilling protected speech. Is there a collision here with the First Amendment? These concerns are real, but not insurmountable. Careful and precise drafting is the key. Revenge porn laws can and should make clear that it is a crime to distribute someone’s sexually explicit images without consent if those images do not concern matters of public importance. Worded that way, a law wouldn’t apply, for example, to the woman who published Anthony Weiner’s crotch shots. Revenge porn laws should also make clear that to win a conviction, prosecutors must show that the poster of the revenge porn intended to do harm. They should only punish the person who distributes sexually explicit photos knowing that the subject expected them to be kept confidential. We don’t want revenge porn statutes to make criminals of teenagers who sext with friends, who then foolishly share them with other friends, without knowing they are breaching someone’s confidence and trust. And statutes may need to require proof that the victim suffered harm, emotional, economic, or otherwise, to ensure that they are not too broad.

To be sure, the government cannot censor the expression of an idea because society finds it offensive or distasteful. Truthful speech should not be banned because it makes people uncomfortable. But certain categories of speech can be regulated because they bring about serious harm and make only the slightest contribution to free speech. Revenge porn comes under that exact heading. One federal court made that clear after an adult entertainment company published a sex tape of a celebrity couple, Pamela Anderson Lee and Tommy Lee, without their consent. As the judge explained, “[S]exual relations are among the most private of private affairs, and a video recording of two individuals engaged in such relations represents the deepest possible intrusion into such affairs.” Drafted with care, revenge porn laws won’t trample on the First Amendment. We should move past the myths and start giving the victims of revenge porn the legal tools they need to protect themselves.

Danielle Citron is the Lois K. Macht Research Professor of Law at the University of Maryland Francis King Carey School of Law and author of the forthcoming book Hate Crimes in Cyberspace(Harvard University Press).